Sunday, 21 February 2010

The Federal Government in its how to websites has not warned Australians that they might risk prosecution in Australia for engaging in overseas surrogacy arrangements.

The risk of prosecution was highlighted again a week ago when Queensland passed new surrogacy laws, which criminalise those ordinarily resident in Queensland from accessing overseas commerical surrogacy clinics.

On neither of the sites is there any mention that it is an offence for a resident of Queensland or the ACT to engage in a commerical surrogacy agreement overseas, nor whether the Department of Immigration and Citizenship will refer people to Queensland or ACT authorities for prosecution. The Department in its Australian Citizenship Instructions likewise makes no mention that ACT or Queensland residents accessing commercial surrogacy clinics overseas commit offences in the ACT or Queensland respectively, nor whether these residents will be referred by Departmental officials to ACT or Queensland authorities for investigation and/or prosecution.

Australian Embassy, Washington DC

This is what the Australian Embassy says. It makes no mention of possible criminal charges or of whether ACT or Queensland authorities will be notified:

Children born through surrogacy arrangements applying for Australian Citizenship by Descent

Information about applying for Australian Citizenship by Descent

Please access our website for information and instructions related to Australian citizenship by descent.

Please access our checklist for instructions for how to lodge an Australian citizenship by descent application in Washington.

Children born through surrogacy arrangements

Anyone considering entering into a surrogacy arrangement outside Australia is urged to exercise extreme caution. They should make sure they are well informed of the Australian legislative requirements for registering such a child as an Australian citizen by descent, and should ensure they are aware of the legal status of surrogacy in the country in which the arrangement is to occur.

Australia is a party to the United Nations Convention on the Rights of the Child and the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, which include obligations to ensure the best interests of the child are a primary consideration in relevant actions, and aim to prevent the abduction, sale and trafficking of children.

Applications for Australian citizenship by descent for children born outside Australia as a result of surrogacy arrangements are assessed according to legal requirements set out in the Australian Citizenship Act 2007 (the Citizenship Act), and the policy guidelines set out in the Australian Citizenship Instructions.

Under these guidelines, a child born overseas as a result of a surrogacy arrangement may be eligible for Australian citizenship by descent if at least one of the biological parents is an Australian citizen who has been granted full parental rights by a court of law.

In addition to the general documents required for applications for Australian citizenship by descent, applications for Australian citizenship by descent for children born as a result of surrogacy arrangements need to be accompanied by:

• evidence that the child is the biological child of the intended parent; and

• evidence that this parent is also recognised as the legal parent of the child and that the surrogate mother and her husband or partner (if applicable) has relinquished all parental rights over the child.

Evidence of the above must be in the form of:

A statement from the doctor to the court stating clearly that genetic material from one or both of the intended parents has been implanted in the surrogate mother (note: the court may require DNA tests to confirm the genetic material of all parties); AND

a confirmation of the doctor’s statement regarding the person/s donating the genetic material; AND

court documentation stating clearly the legal custody of the surrogate child and waiving the rights of the surrogate mother and her husband or partner (where applicable).

This office may request that a client undergo DNA testing to confirm parentage. Please DO NOT undergo DNA testing prior to having it been specifically requested by this office. Further information regarding the procedures and arrangements will be provided by a case officer.

If you require additional information, please contact the Information Service for Australian Visas.

Australian High Commission, New Delhi

This is what the High Commission says. It also makes no mention of possible criminal prosecution in the ACT or Queensland, nor whether there willbe a referral to ACT or Queensland authorities:

Children born through Surrogacy Arrangements applying for Australian Citizenship by Descent

Anyone considering entering into a surrogacy arrangement outside Australia is urged to exercise extreme caution. They should make sure they are well informed of the Australian legislative requirements for registering such a child as an Australian citizen by descent, and should ensure they are aware of the legal status of surrogacy in the country in which the arrangement is to occur.

Indian legislation in respect to surrogacy is limited and Indian laws are expected to change in response to the growing demand for surrogacy arrangements.
Australia is a party to the United Nations Convention on the Rights of the Child and the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, which include obligations to ensure the best interests of the child are a primary consideration in relevant actions, and aim to prevent the abduction, sale and trafficking of children.

Applications for Australian citizenship by descent for children born outside Australia as a result of surrogacy arrangements are assessed according to legal requirements set out in the Australian Citizenship Act 2007 (the Citizenship Act), and the policy guidelines set out in the Australian Citizenship Instructions.

Under these guidelines, a child born overseas as a result of a surrogacy arrangement may be eligible for Australian citizenship by descent if at least one of the biological parents is an Australian citizen who has been granted full parental rights by a court of law.

In addition to the general documents required for applications for Australian citizenship by descent, applications for Australian citizenship by descent for children born in India as a result of surrogacy arrangements need to be accompanied by:

•evidence that the child is the biological child of the intended parent; and
•evidence that this parent is also recognised as the legal parent of the child and that the surrogate mother and her husband or partner (if applicable) has relinquished all parental rights over the child.
Evidence of the above can be given in the form of:

This evidence must be in the form of:
•a statement from the doctor to the court stating clearly that genetic material from one or both of the intended parents has been implanted in the surrogate mother (note: the court may require DNA tests to confirm the genetic material of all parties);
•a confirmation of the doctor’s statement regarding the person/s donating the genetic material; and
•court documentation stating clearly the legal custody of the surrogate child and waiving the rights of the surrogate mother and her husband or partner (where applicable).

(b) DNA testing and written advice confirming legal parentage
Where a client is unable to obtain the court documentation listed in (a) above, they will be requested instead to undergo DNA testing and to provide an independent legal advice confirming the validity of their surrogacy contract and their status as the legal parents of the child. More information on these requirements is given below.

The child and the Australian citizen biological parent will be requested to undergo DNA testing. In this regard, please note:

• You will need to meet all costs associated with DNA testing.
• The Australian citizen biological parent is required to undergo DNA testing in Australia. Processing delays will result if the Australian citizen biological parent undertakes DNA testing while in India.
• In India, DNA tests for the child must be carried out by specified Panel Doctors in New Delhi or Mumbai (more details below).
•Only those Panel Doctors are authorised to carry out the DNA test. You should not make appointments for a DNA test with any other Panel Doctor, as the results will not be acceptable for the purposes of the citizenship application and will have to be repeated, with consequent delays to processing and extra cost for applicants.

Whilst the newborn child may undertake their DNA test in Mumbai by an authorised Panel Doctor, the Australian citizen biological parent will need to travel at their own cost to New Delhi to undergo DNA testing so that it may be witnessed by an Australian Government official.

• Travel costs associated with the DNA tests are at the applicant’s own expense.
• Panel Doctors are required to use specific testing kits, which must be provided to them via a DNA laboratory in Australia with which arrangements are in place to do DNA testing for immigration and citizenship purposes. Details of these laboratories are copied below.

• If the DNA test will be carried out in New Delhi, an appointment with a Panel Doctor will be arranged by the Australian High Commission in New Delhi. The DNA test must be witnessed by an Australian Government official from the Australian High Commission in New Delhi. You must give the Australian High Commission at least three working days’ notice to arrange an appointment.

• If you undertake DNA testing, it is your responsibility to contact one of the recommended laboratories to make arrangements for the testing (further details below).

• Once you have selected and contacted a DNA laboratory, you must advise the Australian High Commission in New Delhi of the details of the laboratory you have selected. The Australian High Commission will then liaise with you and the laboratory regarding testing arrangements. We will provide you and the laboratory with a reference number which you should include in any correspondence with the Australian High Commission in New Delhi.

• More specific information about arranging DNA testing in India is given below.

• If you choose not to undertake DNA testing the application will be decided based on the information provided.

Documents in relation to donors of genetic material

If applicable, please provide copies of any documents or records in relation to donated genetic material (for example, anonymously donated egg or sperm).

Written advice confirming legal parentage

Where a client is unable to obtain court documentation stating the legal parentage of the child, as outlined in (a) above, clients will be requested to provide written advice from a lawyer expert in Indian family law and/or contract law that their surrogacy contract is legal and confirming they are the legal parent(s) of the child.

This advice should include comment on the general legality of the contract (with reference to the provisions of Indian legislation that make it valid) and whether the contract confirms the legal parentage of the child (with reference to the relevant provisions of Indian legislation). It should also include comment on the following elements and state the grounds on which the lawyer is satisfied that these elements are met.

•whether all parties consent to the contract;
•whether the contract is legally enforceable;
•whether the contract gives full legal parental rights to the Australian citizen parent;
•whether the contract waives the parental or any other rights of any other parties to the contract; and
•whether the contract includes evidence that all parties are still consenting and still agree to the contract after the birth of the child concerned.

The lawyer should also state their level of experience and accreditation in the field, and declare any potential conflict/s of interest, such as whether the lawyer or their firm was involved in drafting the surrogacy contract.

Information pamphlets for these laboratories can be downloaded from their websites.

DNA testing - procedure for India

Before you leave Australia

1. Choose the laboratory you would like to use – DNALabs or Genetic Technologies.
2. Contact the laboratory and ask about the testing procedure, the expected timeframe for obtaining the results, the cost involved and any other questions you have. The Australian High Commission is unable to provide this information.
3. Arrange for the Australian citizen biological parent to undergo DNA testing in Australia.

Note: Australian citizen biological parents should undergo DNA testing in Australia and before travelling to India. Processing delays will result if the Australian citizen biological parent/s undertakes DNA testing while in India. This is because DNA testing of Australian citizen biological parents must be witnessed in New Delhi under the supervision of an Australian Government Official from the Australian High Commission. It is only the newborn child/children that may undertake DNA testing in Mumbai. If the Australian citizen biological parent chooses to be tested in India, then they will need to travel at their own cost to New Delhi to undergo DNA testing so that it may be witnessed by an Australian Government official from the Australian High Commission in New Delhi.

4. Decide whether you would like your child to undergo DNA testing in New Delhi or Mumbai.
After you arrive in India
If the DNA testing will be done in New Delhi:

1. Contact the Australian High Commission at Citizenship.NewDelhi@dfat.gov.au and request an appointment with a Panel Doctor. You must give the Australian High Commission at least three working days notice to arrange an appointment.
2. The Australian High Commission will confirm an appointment day and time and send you some forms to complete prior to your arrival at the panel doctor's office. Please bring at least two passport photos for each person being tested.

3. You will be met at the Panel Doctor's office by an Australian Government official, who will guide you through the testing process.

4. The Australian Government official will take the DNA sample/s and completed forms back to the Australian High Commission and dispatch by courier on the same day. It will take approximately three working days for the samples to arrive in Australia.

If the DNA testing (for the new born child/children) is to be done in Mumbai:

1. Contact Dr Jayant Rele at jayant.rele@releclinic.com or on +91 22 2361 3838 and request an appointment.
2. If you have not received the required forms for completion, please request these from the Australian High Commission at Citizenship.NewDelhi@dfat.gov.au and complete as much of the relevant forms as possible before your appointment.
3. Please bring (a) the forms and (b) at least two passport photos for each person being tested to the Panel Doctor’s clinic.
4. The Panel Doctor will guide you through the testing process.
5. The Panel Doctor will dispatch the DNA sample(s) and completed forms by courier on the same day. It will take approximately three working days for the samples to arrive in Australia.

What will happen next?

The laboratory will advise the Australian High Commission once the test results are completed. It usually takes 5-8 working days for the laboratory to provide the test results to this office.
The Australian High Commission in New Delhi is responsible for deciding all applications for citizenship by descent in relation to children born via surrogacy arrangements in India.

This means that whether your child/ren have undertaken DNA tests in New Delhi or Mumbai, the application for citizenship by descent must be forwarded to the Australian High Commission in New Delhi for assessment and decision.

If the child meets all the requirements, the High Commission will grant the child citizenship and provide a citizenship certificate.
Processing times

2. Download form 118 Application for Australian citizenship by descent from www.immi.gov.au/allforms/pdf/118.pdf before your child is born and complete the form as soon as your child is born.

3. Obtain passport sized photos of your baby as soon as possible. You will need photos for the citizenship application, DNA testing forms and passport application.

4. Obtain a bank demand draft (bank cheque) for the citizenship application fee. To find out the current fee please go to www.immi.gov.au/allforms/pdf/1298i.pdf . Please note that if you are lodging more than one citizenship application at the same time (for example if you have twins) the fee for the second application is less than the first. To convert the Australian dollar amount to Indian rupees, please use the currency converter at www.immi.gov.au/allforms/990i/converter.htm . Please note that a bank demand draft is the only acceptable form of payment for the citizenship application fee. The demand draft should be made payable to the 'Australian High Commission New Delhi', payable in New Delhi.

5. You can lodge your child's citizenship application as soon as you have completed it. You do not need to wait for the DNA testing to lodge the application. See www.india.embassy.gov.au/ndli/vm_citizen_lodge.html . You do not need to lodge you child's citizenship application in person. You can send the application via our service delivery partner (preferred), by courier or by post. See www.india.embassy.gov.au/ndli/vm_howtoapply.html . If you choose to lodge the application in person you need to make an appointment by sending an email to appointments.newdelhi@dfat.gov.au or calling +91 11 4122 1000.

6. For any further queries regarding Citizenship or DNA testing which are not covered in the website please contact us by email at citizenship.newdelhi@dfat.gov.au.

7. For any further queries regarding passport applications which are not covered in the website please contact the Consular section of the Australian High Commission New Delhi by email at austhighcom.newdelhi@dfat.gov.au.

Contacting the Australian High Commission

• Please forward ALL QUERIES to Citizenship.NewDelhi@dfat.gov.au.
• This mailbox is cleared daily and surrogacy queries are dealt with as a priority. Therefore using the mailbox will ensure the quickest possible response.
• Please DO NOT contact individual officers for information as this will slow the process

Australian Citizenship Instructions

The instructions are the administrative basis for deicsions by the Department of Immigration and Citizenship. Aside from warning about "extreme caution" about overseas surrogacy arrnagements, the Instructions mention nothing about surrogacy being an offence in the ACT or Queensland, nor whether the Department will refer the matter to Queensland or ACT authorities. This is what the instructions say:

This part comprises:

􀂃 Is a surrogate child eligible for citizenship by descent?

􀂃 If there is no genetic link to the Australian parent.

As a party to the United Nations Convention on the Rights of the Child and the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, Australia is committed to protecting the fundamental rights of children. These Conventions include obligations to ensure that in all actions concerning children, the best interests of the child are a primary consideration. The Hague Convention focuses on the need for countries to work to prevent the abduction, sale, or trafficking of children. The ACIs seek to support Australia’s international obligations in this area.

Extreme caution should be exercised in cases involving surrogacy arrangements entered into overseas to ensure that Australia’s citizenship provisions are not used to circumvent adoption laws and other child welfare laws. Commercial surrogacy arrangements are illegal in Australia at this time.

Section 8 of the Act does not apply to surrogacy arrangements entered into overseas. Section 8 of the Act applies to couples who use artificial conception procedures or surrogacy arrangements occurring under a prescribed law of an Australian state or territory to become parents to a child.

IS A SURROGATE CHILD ELIGIBLE FOR CITIZENSHIP BY DESCENT?

A surrogate child will generally be eligible for Australian citizenship by descent if at least one of the biological parents is an Australian citizen, who has been granted full parental rights by a court of law.

In the case of a child born as a result of surrogacy arrangements, it is a requirement for registration of citizenship by descent that there be a genetic link between a parent and the child in question and that that parent be recognised on the birth certificate.

Documents required to register a surrogate child as an Australian citizen by descent are:

􀂃 a statement from the doctor to the courts stating clearly that genetic material from person A

and/or person B has been implanted in person C; and

􀂃 court documentation stating clearly the legal custody of the surrogate child and waiving the
rights of the surrogate mother. The statement must also confirm the doctor’s statement
regarding the person/s donating the genetic material.

Family situation is not relevant to registration of citizenship by descent, provided at least one
biological parent is an Australian citizen who has been granted full parental rights by a court of law.

When the biological parent is an Australian by descent they will need to meet the requirement to have been lawfully present in Australia for a total of two years before the child can be registered as an Australian citizen by descent.

IF THERE IS NO GENETIC LINK TO THE AUSTRALIAN PARENT

It is possible for a birth certificate to be issued where neither parent has a genetic link to the child but their names are included on the child’s birth certificate. If there is no genetic link with either parent, then in spite of the fact that the birth certificate is in their names, they should be requested to seek an adoption order and sponsor the child for an adoption visa. DNA testing can be considered to establish the genetic link if appropriate documentation is not available.

Commercial surrogacy is illegal in Australia, except for the Northern Territory. In the NT, commercial surrogacy is in effect banned because the doctors providing IVF treatment are from Adelaide, and subject to South Australian licensing and laws.

MP's have generally taken the view that commercial surrogacy involves the exploitation of women, especially those from the third world, and also involves the treatment of children as commodities.

The reality however is that Australians have used and will continue to use overseas commercial surrogacy clinics. For example, as seen in two Family Court cases, Victorian gay couples in Re Mark and Cadet and Scribe, went to the US, undertook commercial surrogacy and ended up with orders for the parenting of the children from the Family Court. In both cases when the men undertook the arrangements, it was an offence for them to undertake commercial surrogacy both in Victoria and overseas.

Each of the States and Territories have different rules about their residents having children through overseas commercial clinics.

It is a criminal offence for any commercial surrogacy arrangement to be entered into in Queensland. It is also a criminal offence for a person ordinarily resident in Queensland to enter into a commercial surrogacy arrangement anywhere in the world. This Act in effect repeats the repealed Surrogate Parenthood Act 1988[PDF]. It has been an offence since 1988 to engage in commercial surrogacy in Queensland or for someone ordinarily resident in Queensland to engage in surrogacy somewhere else, including through overseas clinics.

The Surrogacy Act 2010 bans commercial surrogacy both in Queensland and by those ordinarily resident in Queensland anywhere in the world. It does this by:
-banning advertisements
-banning commercial surrogacy
-payment (other than for the surrogate's reasonable surrogacy costs)
-providing technical and medical assistance if the person knows the other person is, or intends to be, a party to a commercial surrogacy arrangement; and the person provides the service with the intention of assisting the other person to become pregnant for the purpose of the arrangement. (It doesn't apply if the surrogate is already pregnant).

Status: Commercial surrogacy banned only in NSW. Soon: banned anywhere in the world.

Commercial surrogacy is banned in NSW. NSW residents are currently not banned from going to overseas commercial surrogacy clinics.

The Act makes it an offence to:
-enter into a commercial surrogacy agreement
-arrange a commercial surrogacy agreement
-accept any benefit under a commercial surrogacy agreement
-advertise for commercial surrogacy

Commercial surrogacy agreements are void.

Going, going, gone...

NSW has now passed the Surrogacy Act 2010. This Act is due to be proclaimed on a date to be fixed, but in all likelihood before Christmas. When this Act comes into effect, it will be an offence for those who reside in or are domiciled in NSW from engaging in acts of commercial surrogacy, wherever that might be, whether in Australia or overseas.

"Residence" and "domicile" are different legal concepts. Residence is pretty clear- that you live in the location. Domicile is a wider concept. In law there are essentially two types of domicile. One is a domicile of choice: a person has chosen to be a permanent resident somewhere, for example in NSW. The other is domicile of origin: a person was born in NSW, and has not adopted a domicile of choice, because for example they travel around the world. Such a person, who does not live in NSW, will be caught up in this legislation. The Wikipedia article on domicile is a useful starting point.

If in doubt, get advice. I am happy to provide advice to those in NSW about the effect of the changes.

NSW is the only jurisdiction in "reforming" surrogacy that has actually taken away rights. Altruistic surrogacy has been legal for many years in NSW. The trick was not being able to get a Parentage Order as you could say in the ACT. For straight couples, this could be circumvented by obtaining an adoption order. Gay and lesbian couples will be able to do so as well, with changes to allow same sex adoptions. NSW residents have been able for many years to access commercial surrogacy clinics overseas, and many have done so. The changes will now prevent them from doing so legally.

Commercial surrogacy is banned in the ACT. The law does this by:
-banning commercial substitute parentage agreements
-banning the advertising for surrogacy
-banning the procuring of commercial substitute parentage agreements
-banning the facilitation of pregnancy

It is an offence for ACT residents to engage in any of these anywhere in the world "if, when the offence is committed, the person who commits the offence is ordinarily resident in the ACT".

Commercial surrogacy including overseas commerical surrogacy was banned under the Infertility Treatment Act 1995. That Act was repealed on 1 January 2010, with the coming into force of the Assisted Reproductive Treatment Act 2008.

The 2008 Act bans commercial surrogacy in Victoria, but does not ban Victorians from accessing overseas commercial surrogacy clinics.

Commercial surrogacy is banned, including advertising or making the arrangement.

It is an offence to facilitate a commercial surrogacy arrangement:

"(1)A person who provides a service knowing that the service is to facilitate a surrogacy arrangement that is for reward commits a crime except in the circumstances described in subsection (2).
(2) It is not an offence against subsection (1) if the service is a health service provided to the birth mother after she has become pregnant. "

The nature of this offence extends beyond health professionals, and might include, for example, brokers for overseas commercial surrogacy clinics.

There is no legislation covering NT citizens. It is therefore not an offence for a Territorian to go to commercial surrogacy clinics.There are no such clinics in the NT. It is not an offence for a Territorian to go to an overseas commercial surrogacy clinic.

In 2008 there were amendments to the Family Law Act to recognise children born in Australia as children of the parties under the Family Law Act, but only if there were State or Territory laws allowing a parenting order, and that order had been made. It should be noted at this point that different rules may apply in Western Australia to the rest of Australia. As seen below, there have been some nightmare cases involving surrogacy.

In recent years the use of artificial insemination procedures has risen dramatically, both here and overseas. They were once procedures of last resort for infertile heterosexual married couples. They have now become a mainstream solution for various reproductive challenges including absence of a heterosexual partner. New groups such as single women seeking to raise a child alone, same sex couples and gay men who have arranged for a mother to carry their child have used these procedures.

Whilst technology has grown and the ambit of artificial insemination procedures has expanded the legal system lags behind. This can lead to complicated child custody disputes between the parties.

Some of the cases refer to leave to adopt. Getting leave to adopt is a first step in the adoption process. Leave can only be obtained form the Family Court.

The cases I have written about are from the Family Court. I was unable to find any Federal Magistrate Court cases.

Re Evelyn (1998) - the nightmare case, where two couples agreed that the wife in one couple would be the surrogate for their friends. One couple lived in South Australia, where surrogacy was illegal. The other couple lived in Queensland, where it was also illegal. Re Evelyn is the classic demonstration as to the benefits of extensive regulation and counselling with surrogacy. This is because the surrogate mother decided to keep the child, and not hand her over. Ultimately the Family Court considered that this was in the best interests of Evelyn.

In 2003, Mr X and Mr Y approached the Family Court for orders concerning their child, Mark. They were a gay couple who lived in Victoria. At the time, it was illegal in Victoria to engage in commercial surrogacy, and the ban extended outside Victoria (including overseas).

This ban didn't stop Mr X and Mr Y. They went to a commercial surrogacy clinic in California, and ultimately Mark was conceived and born. It was gestational surrogacy agreement: the sperm was Mr X's, but the egg was not the surrogate's but that of an anonymous donor.

In accordance with Californian law, the surrogate relinquished all rights, and Mr X and Mr Y were deemed to be the parents. A court order was made in California that Mr X was the father. By virtue of that order, and Mr X's DNA, Mark was an Australian citizen by descent, and therefore able to migrate and live, as an Australian citizen here.

Mr X and Mr Y were granted joint parenting orders by the Family Court. Justice Brown said that the fact that the surrogacy agreement would be illegal in Victoria was "irrelevant".

A gay couple, Mr Cadet and Mr Camden, again apparently from Victoria, where it was an offence to enter into surrogacy, including outside Victoria, went to a clinic in Ohio. A child was born through a surrogacy agreement. An order was made in an Ohio court that the child was that of Mr Cadet. The child was considered to be an Australian citizen by descent.

The matter came before Justice Brown, who made an order for joint parental responsibility.

Mr Raines and Ms Banner had a child through an altruistic surrogacy arrnagement with Ms Curtin. The arrangment was illegal in Victoria. The child was conceived from the sperm of Mr Raines and the egg of Ms Curtin. Justice Brown made an interim order granting parental responsibility to Mr Curtain and Ms Banner. Her Honour also indicated that she would make final orders to allow them leave to adopt.

Justice Brown stated:

The court has an obligation to make it clear that surrogacy agreements are not able to be enforced pursuant to the laws of Victoria. That is a matter within State law. I say nothing further on that subject. The court’s jurisdiction is to make parenting orders in respect of children, on application by a parent, grand parent or other interested party. I am satisfied the applicants have the status to bring the application and the court the jurisdiction to make the orders sought....On the evidence now before me, there is no reason to doubt the bona fides of all the parties to this application. No doubt each will understand that the court must ensure it is not being used to “rubber stamp” inappropriate arrangements, which may not be in the best interests of the children involved.

This was strictly a surrogacy case, but shows some of the complications that can arise when mixing IVF and family breakdown. Mr and Mrs G had split up. Before they split up, Mrs G's embryos had been stored at an IVF clinic. By the time they got to the Family Court of Western Australia, Mr G sought ownership of the eggs. He wanted them to be donated to an infertile couple or used in a surrogacy. At the time, surrogacy was illegal in Western Australia. Mrs G wanted them discarded. The dispute got ugly:

Mrs G] says that ...she had a telephone conversation with [Mr G] in which he told her words to the effect that he will agree to the destruction of the embryos if she agreed to give him 80% of the assets. [Mr G] denies this.

[Mr G] was also cross-examined on several remarks he has made in relation to the embryos. He admits that at a barbeque he told one female, in response to her offer to be surrogate, that he preferred her other friend because she had big hips and would be able to carry triplets. He inferred that for this purpose all six embryos should be implanted in the woman. This comment shows [Mr G] ignorance in relation to issues surrounding implantation of the embryos. [Dr P] gave evidence that in a woman under 35 years only one embryo would be implanted at a time. In a woman over that age two embryos would be implanted. He also admits that he left a message on [Mrs G]’s phone threatening that he would send the “right to lifers” over to her work in attempt to change her mind about allowing the embryos to succumb.

In my opinion [Mr G] has enjoyed the notoriety which has arisen as a result of the dispute over the embryos. I have serious doubts about his motives in seeking, at all costs, that the embryos not be destroyed.

In cross-examination [Mrs G] admits that she did at one point reluctantly agree with [Mr G] that she would donate the embryos but only because [Mr G] threatened her that he would take the matter to the Supreme Court. [Mrs G] says that after reading the donation form and the conditions she did not want to go through with donation.

The effect of the agreement with the IVF clinic was to ensure that Mrs G became pregnant. Mrs G did not want to become pregnant. Justice Penny ordered that the embryos were not property, and that sole decision making about the embryos was vested in the wife.

King and Tamsin (2008) involved the Family Court making an order for joint parental responsibility for a child born by a friend acting as a surrogate. The case was decided in Melbourne, where surrogacy was illegal, but it is unclear if the parties came from Victoria, or whether the child was born in Victoria.

Re Michael (2009) - another nightmare case, which demonstrated that an altruistic surrogacy in NSW did not lead to an adoption, due to the failure of NSW to properly regulate altruistic surrogacy. (It would not have prevented a Re Mark type order, if that had been sought, but apparently it wasn't.)

Rusken and Jenner (2009) was the first case of a couple who had had a child by surrogacy, and had then split up. Mr Rusken and Ms Jenner were married and lived in South Africa. They entered into a commerical surrogacy agreement with Ms Woedene, paying her 50,000 to 60,000 Rand. It was unclear, ultimately (and it appears no one did a DNA test) as to whether the egg that was fertilised that resulted in the birth of the child was Ms Jenner's or Ms Woedene's. Mr Rusken and Ms Jenner were shown on the birth certificate.

Mr Rusken, Ms Jenner and the child subsequently migrated to Australia, and later split up. Ms Woedene had contacted South African authorities to ensure that the birth certificate was altered to ensure that the father was changed to "unknown" and that she was shown as the mother. Justice Bell had to determine whether Mr Rusken was the father. He had no doubt that he was. He treated Ms Jenner as the mother.

Justice Bell stated:

It is not Ms Woedene’s rights which may be fair under the South African law. It is not here. We have jurisdiction. We apply our laws. It has been set as long ago as 1979 in Gronow that being a mother does not give you a preferential position. It is a factor, an important factor but it does not give the mother a preferential position. The Court has to consider all matters, an important factor which is the mother. That leads me then on to Ms Woedene.

Ms Woedene was paid to become pregnant. She indicated to me she received some 50,000 to 60,000 rand. I have not been informed of the exchange rate but it is something like 6 or 5 rand to the Australian dollar. That is on the bank rate. She was paid something like nine to $10,000. She indicates that, as a result of that, as a result of her being the birth mother, the child should return to South Africa, should be wrenched away from his father, should be wrenched away from the environment which he has known since 2002, even though he was only a baby at the time, be wrenched away from his emotional mother, his emotional father, be wrenched away from his school, from whatever friends he has, and returned to South Africa where Ms Woedene has four children of her own, all of whom are adult and has fostered two other children. She runs a shop.

She has not put before me one jot of evidence which would convince me that the child’s welfare would be advanced by his being wrenched away, not from Australia but from his present environment and I cannot, for one moment, accept that that would be to his benefit. In fact, I reject her claim totally. It may be I might be persuaded to allow her to be able to contact the child when he is with his mother but not otherwise.

Justice Bell made an order for the child to live with Ms Rusken, spend time with Ms Jenner, and that a copy of the orders be sent to South African authorities.

Mr and Mrs Hutchens entered into an altruistic surrogacy agreement with Ms Franz, resulting in the birth of a child. The child was conceived by Mr Hutchens' sperm, and Ms Franz' egg. All parties lived in South Australia, where altruistic surrogacy was illegal and void. Justice Strickland ordered that Mr and Mrs Hutchens, who had cared for the child since it was 2 days old have leave to start adoption proceedings. An order had previously been made giving Mr and Mrs Hutchens parental responsibility.

I have difficulties with surrogacy, primarily the concern that it is a practice which involves a
premeditated intention to separate a child from his or her birth mother. Notwithstanding the fact that I
have strong concerns for the wellbeing of the child conceived in this arrangement, I think I may be able
to be persuaded to support a very limited form of altruistic surrogacy as an absolute last resort for
infertile couples and only after all other available means are exhausted. I also agree that it is not in the
interests of an innocent child for his non-birth parents to be imprisoned. The configuration of a child’s
family is not his or her fault. Children should not be punished and disadvantaged because of this.

The question that then ought to be asked is that, with all things being equal, would a child be

better off raised in a family of two parents with both genders present? Some will say that it makes no
difference. I respect that. I say it does, all things being equal. I believe in my conscience that children
develop best, both physically and emotionally, when they are reared in a stable family with both male
and female role models available, notwithstanding that this is not always possible. This is not to say that same-sex or single parents cannot be good parents; quite the opposite. Even those advocating for
same-sex parenting accept the importance of role models but seek only to argue that perhaps ‘other
positive role models can be found elsewhere such as scout leaders, school teachers and sport
coaches’.

I do not accept, as the parliamentary committee argues, that as a legislator I must strike a
balance between the best interests and wellbeing of a child and on the other hand those people who are seeking to become parents through altruistic surrogacy arrangements. Nor do I accept that the interests of the child and that the interests of the parent compete and that a child’s interests need to be
harmonised with those of adults who wish to become parents through surrogacy. To me, such an
argument is completely contrary to the intentions of the UN convention.

I do agree with my colleagues that children born into same-sex and single surrogacy
arrangements should not be further disadvantaged simply because of the actions of adults. The rights of children who are or will be born in the future in these circumstances in my view should be vigorously
advocated where possible by this parliament.

I have yet to hear a single cogent justification why same-sex couples or single people should be legally able to access medical artificial insemination or IVF but not surrogacy. All of these technologies use similar procedures.

Under the [Opposition] bill ... if it were passed we would end up with an absurd situation. It would mean that a single woman or a woman in a same-sex relationship with a perfectly functioning uterus could form a family through either artificial insemination or IVF. That is happening now. It is legal. Nothing will change. However, a single woman or a woman in a same-sex relationship who ... has some clinical reason why her uterus is either not intact or not healthy and functioning would be denied this particular form of technology.

In my view there is no policy rationale why single women and people in same-sex relationships

can access that form of assisted reproductive technology but not this form. In fact, if those who oppose these parts of the bill have these sorts of objections, in all honesty they should come back into this parliament and introduce a bill to remove the discretion that doctors currently have to provide fertility treatment to people who are single or in same-sex relationships. I note that to date they have not done so, nor have they put forward any reason why some forms of technology should allow single people and same-sex couples to have a family but not other forms of technology.

Surrogacy arrangements will happen whether the law allows for the transfer of parentage or not,

just as women in same-sex relationships will have children whether the law allows for both same-sex

parents to be listed on the birth certificate or not. The first question that we face in putting together a

regulatory framework is: who should be allowed? As I have outlined, I do not think there is any sound

basis for ruling out people on the basis of their particular relationship circumstances. The second

question is: if we go down the path of decriminalising surrogacy how do we then ensure adequate legal

status for the children who are born in these sorts of arrangements? We have to make sure that our

laws keep pace with technology and we have to recognise the legal position of the children who are born through these technologies.

Queensland children deserve equality with their counterparts in a number of other states who,

regardless of the circumstances of their birth, have the same legal rights whether they are born through

natural conception, IVF, assisted reproductive technology or surrogacy arrangements and regardless of the parental relationships of their family. In Queensland right now children are being raised in loving and supportive families that simply are not being recognised by the law. It is the children in these families who are disadvantaged. It is the children in these families whose birth certificates are not a true

reflection of their lives. They are not a reflection of who makes decisions about these children. They are not a reflection of who decides which schools these children attend, where these children will get

medical treatment, who consents to their surgery, who makes their lunches and who reads them stories

every day. Ask those children who their parents are and they will tell you. It may not be an answer that you want to hear, but they know the two people in their home who are bringing them up every day are their parents. If the birth certificate is not changed to allow the people who are actually raising the child to be recognised in law, it leaves these decisions under a cloud of uncertainty and it leaves them open to challenge. We need to make sure that that is not the case for these children.

If the Deputy Leader of the Opposition’s bill were passed by this

parliament, Queensland would be the only state in Australia that would prohibit single people from

accessing surrogacy arrangements or discriminate against people on the basis of same-sex

relationships. I do not believe that we have yet seen one argument put forward in this parliament about

why these arrangements can be entered into as soon as you go to Tweed Heads but not here.

Some of the comments of some of the members here are an
appalling reflection on them, their intellect and values. They do not stand scrutiny today let alone in the
harsher light of history that will illuminate them in decades to come.

Homosexuality was not dreamt up by a crowd of trendies in San Francisco in the 1970s. It existed

in biblical times. So did child abuse.

Customary surrogacy has gone on in the Torres Strait since the Torres Strait Islanders first settled there.

Customary surrogacy has gone on in the Torres Strait since the Torres Strait Islanders first settled there.

The reality is that, if we do not deal with same-sex or single-parent surrogacy, it will still take place
as it has in the past, but there will be a consequence if we do not.

As an adopted child with no father on my original birth certificate, I would have been deemed illegitimate. In the past, that would have meant legal consequences flowed, restricting ownership of property, inheritances and the like. This is what took place in the days before the Status of Children Act. So we are prepared to condemn children born of same-sex or single-parent relationships to the stigma that others will not have. Why? Because of the sexual preference of their parents or because there is one parent, even if that sole parent is assessed as being appropriate for surrogacy.

In surrogacy, we are talking about prospective parents who are screened to high heaven and
have often gone through painful and heartbreaking fertility treatments on the way through. These are
surely among the most wanted and loved children of all.

It is harder to get a driver’s licence than it is for people to have a child—except, that is, if it is an adopted or surrogate child.

you can no more command the tide than stop the birth of children in the circumstances contemplated by this bill.

There is nothing second class about any child I have ever met.

Is there a member on the other side of the House with at least the decency to walk in here and
enjoin the debate to deplore and decry that which has been said by the knuckle draggers like the
member for Condamine and the member for Burnett? We recognise that they have all been told to toe
the line. So much for free thinking.

But what is even more cowardly in this debate than their failure to vote against, to stand up for the
individual rights of children who have no say in the manner of their entry into this world, is their failure to walk in here and at least separate themselves from the comments that are today bringing us national
condemnation. By their silence they embrace the vile idiocy that will forever stain the Hansard of this
parliament. By their silence they condone the bigotry being peddled. Most shamefully, by their inaction
they condemn children to being second-class citizens. By their craven cynicism they are tearing out the
heart of a tradition of liberalism that has freed the slaves and advanced the cause of freedom for
centuries.

The arguments presented by opposition members
are really not about the methods by which someone becomes a parent; they are about who should be
parents regardless of how they become parents. The arguments presented by those opposite to the
government’s bill are centred around moral views about people’s relationships, no matter how much
they try to disguise their moral views by referring to so-called research that concludes that a child is best raised by a mother and a father together.

A same-sex couple having a child does not harm anyone.

I believe that a child growing up in a same-sex family that was loving, genuine and committed would be far better off than a child living in a destructive, violent, cold and unloving heterosexual relationship.

Children have the right to two parents. They have the right to equal protection under the law.

These rights exist regardless of their parents’ sexual orientation, their parents’ marital status, religion,lifestyle or any other factor that has come up for discussion. Surrogacy is not new. Same-sex couples raising children together is not new. These arrangements and families currently exist in Queensland but, as things stand, they live without the protection of the law.

The important thing is that children are loved and feel safe in their homes with the people who make up their families. For me it is not important what gender those people are nor what their sexual orientation is. It is none of my business and it is not the business of this parliament to dictate how people live their lives.

two loving parents, whether they be male or female, or a single parent who loves them and treats them

with respect or whether they would like to be part of a family where their father comes home drunk and flogs mum every night, I think they will take the same-sex couple or the single parent every time.

It saddens me that there are still people in our community who are intolerant of the lifestyles

of other members, not because of anything that those people have done but because they are simply

opposed to anything but their own view on how society should be.

There is good evidence of equal or more positive outcomes for children with non-biological parents, same-sex parents and surrogate arrangements in child emotional, social and psychological development and in parenting styles and family functioning.

Having made a deliberate choice to have children, [same sex] parents are providing an effective and loving environment and equipping their children with the skills to build resilience. They are also imbuing their children with the value of acceptance. In this way, parents and their children are positively contributing to our pluralist society.

More than 25 years of research has documented that there is no relationship between parents’ sexual orientation and any measure of a child’s emotional, psychosocial and behavioural adjustment. This data has demonstrated no risk to children as a result of growing up in a family with one or more gay parents. No research supports the widely held conviction that the gender of parents matters for child wellbeing. If gay, lesbian or bisexual parents were inherently less capable than otherwise comparable heterosexual parents, their children would evidence problems regardless of the type of sample. This pattern clearly has not been observed.

Let us talk about deceit. Let us talk about someone [he is referring to Lawrence Springborg] turning up at a lunch put on in this place for the lesbian and gay community, who pretends to be friends of the lesbian and gay community, who stands up and talks about how he supports them and how valuable they are and then neaks away to a room and writes a bill to make it illegal for them to have children. That is deceit and that is disgusting behaviour from someone in this House. He should be ashamed of himself.

The vast majority of
those children come from what might be considered traditional families made up of a mother and father.

A so-called traditional family does not guarantee a healthy, happy and safe home environment for children.

Fundamentally, I do not believe that this parliament has any legitimate
role in dictating who may or may not start a family and raise a child in this state, because in the context
of altruistic surrogacy arrangements there is not one scrap of credible evidence that children conceived
and raised in this way are in any way harmed or at risk of harm, nor is there one scrap of credible
evidence that such arrangements in any way, shape or form harm society. I believe this to be the case
regardless of whether the family is made up of a mother and father, a single mother or father, or a samesex couple.

All the arguments against surrogacy
with respect to same-sex parents lends no credence to the wellbeing of the child living within that
relationship.

The concepts of liberty, equality, relationship and care are the priority values, and they all impact
on the rights of the child.

Families can and do exist in many nonconforming and/or alternative ways.

I am pleased to add my support to the government
by placing my conscience on the record in support of the rights of a child to live safely in a loving and
caring environment where communication, love and support prevail.

We have heard some,quite frankly, ludicrous and ill-informed criticisms and opinions from the opposition. Some members opposite have expressed rigid and outdated views about what constitutes a family in the modern day. Times have changed and we need to change with them. Today there is much wider community acceptance that families can take on a variety of forms. This reform will bring Queensland into line with other Australian jurisdictions that have regulated altruistic surrogacy. Despite the doom and gloom we have heard from the opposition on this issue, the ACT, Victoria, South Australia and Western Australia all have this option available to people.

People will not
make these sorts of decisions lightly but will think long and hard before entering into a surrogacy
arrangement. This bill is not going to open the floodgates.

There is
insurmountable evidence that, tragically, for some children the traditional family unit is not always the
safe and nurturing environment it should be but can occasionally be dangerous and dysfunctional.

Last March, during the election campaign, I held several street-corner meetings. At one of these
meetings I met Sharon Isle. Sharon has given me permission to share her journey to parenthood.
Sharon and her partner—a woman—are in a long-term, committed relationship. Like many people in
their situation, they reached a point in their relationship where they decided to start a family. They made a planned and deliberate decision to bring a child into the world. They based this decision on the
stability of their relationship and their economic ability to provide all the things that a child needs. As
Sharon said to me, ‘Our family was created by choice.’

Because of the legal complexities that exist because they are in a same-sex relationship, there
were other considerations that Sharon and her partner undertook in order to ensure that their son’s
future holds the same certainty that other children have. They have gone to the Family Court and
obtained a parenting order which ensures that Sharon, as the non-biological parent of their son, is
legally bound to be economically responsible for him into the future. They have added specific and
special clauses to their wills. They have established family trusts and they have sought specialist legal
advice which will allow future certainty for their son in a range of areas including inheritance.
Sharon reminded me that this government bill is about responsibility towards that child; it is not
about the parents. Sharon and her partner could have relocated to her home state of Western Australia to have their child and take advantage of the fact that Western Australia already has these laws in place. They chose not to because they are established in Townsville and that is their home. So they have taken these other measures that I have just described. I will at this point put on the record my gratitude andthanks to Sharon for allowing me to share her very personal story with the parliament tonight.

Why is a child who has been born in a planned pregnancy in a traditional family any less of a commodity than a child who is planned for and born through a surrogate birth mother?

There are many important ingredients to a good childhood but being loved is the most important
one. If a person goes to the lengths required to find a surrogate mother and convince her that they
would make good parents and if they then convince the court to grant a parentage order, it is very likely that they truly want that child.

From time to time an issue comes before the
parliament that requires legislators to remember the fundamental principles of a free democracy. This is
such an issue.

To ban altruistic surrogacy is to arrogate to government the right to eliminate people from the gene pool.

You step into murky waters when you accept that a government, any government, at any time has the right to say to some of its citizens, ‘You are allowed to have children’ and to others, ‘But you are not’.

To legislatively eliminate people from the gene pool is actually a form of eugenics.

When we turn to the opposition’s surrogacy bill, we enter a nether world in which surrogacy is
available to you, but only if you are what the LNP regards as the right sort of person.

Altruistic surrogacy is not an activity that society has any business limiting, because nobody is harmed by it; not the biological parents who will achieve their objective of real parenthood, not the surrogate mother who will be performing the ultimate labour of love and most certainly not the baby since his or her alternative was never to exist at all. I note there is broad support across the chamber to legalise surrogacy and it is an honour to join those who have already spoken in support of the legalisation of surrogacy.

The reality is that people who are prepared to go through the medical interventions, the processes and the organisational tasks involved in surrogacy are actually people who are very likely to make good parents.

We cannot govern the wind, we cannot administer the tides and we should not try to control human procreation.

Single-parent and
same-sex families already exist in our communities and there is no evidence that I am aware of that the
children in these families are less likely to be loved than if they were in a traditional heterosexual family.

I have had several constituents who have likened the issue of surrogacy to treating children as
pets. Nothing could be further from the truth. Unlike children who are born of ‘accidents’ or because that is what ‘usually happens’, children born of surrogacy arrangements are well planned for and loved.

LNP members have reminded us all that some Queenslanders have not progressed too far at all. If they ever take over the running of the state, people will be quite justified in
calling Queensland the home of rednecks once more.

(On Lawrence Springborg): Not only did he attend the community engagement barbecue forthe gay and lesbian community, he was one of the last people to leave. The people I spoke to who
attended did not hear the member say once that he was happy to talk to them but was never going to
give them the chance to be parents. What a hypocrite. It is obvious that you only have to scratch the
surface slightly to reveal the true redneck below.

The LNP thinks there is something genetically wrong with homosexuals, that somehow they are
not complete human beings. I would remind them that all homosexual people had a biological mother
and a biological father, but that has not affected their sexual preferences.

The type of backward thinking displayed by all speakers from the LNP in this debate just astounds me. It makes me wonder how the LNP can stand being near homosexuals. It also makes me
wonder why a gay person would ever work for the LNP because the views expressed by LNP
representatives must make them shudder. The LNP is basically saying, ‘Look, you can work for us, but we are not going to give you the same rights because there is something fundamentally wrong with you. You can do all our legwork but because of your sexuality, you are a deficient human being, unable to care for or nurture another person.’

My vision for Queensland is that together we can continue to build open,
tolerant, supportive, understanding and compassionate communities where we together promote a
normalisation agenda to ensure that all Queenslanders—all people—are treated equally, irrespective of their marital status, sexuality, race or religion and where we together support children equally,
irrespective of the circumstances of that child’s birth or the nature of their family structure.

This bill ensures that all children born in Queensland enjoy the same status, support and protection, irrespective of the relationship status or sexual orientation of the child’s parents.

The only other issue (aside from surrogacy) approaching that level of interest in my electorate has been the issue of a brothel which has been established there.

It occurs to me that the...burdens that we will be placing on these children will make
it desirable that they have access to counselling...at no cost to the child.

I support this bill because I do not believe that the law should be designed, as is the bill proposed
by those opposite, to discriminate against particular individuals in this state, and nor do I believe that it
should be designed to create a second class of children as a result. Faith in our lives must be allowed
the room to grow and to breathe. It is not nurtured when the faith or hopes or desires of others are stifled under the guise that they threaten our own. The law should be a shelter for all beliefs and lifestyles in this way. While I may have no personal need nor desire to seek its protection, my responsibility as a member of this place is to ensure that that protection is not selectively denied to my neighbour.

Whatever else anyone
might say about people who are seeking altruistic surrogacy arrangements, regardless of whether they
are single or in a heterosexual or same-sex relationship, to go through what they must go through that
person really, really, really wants that child.

A family contains
people who love you, keep you safe, who are there for the good times and the bad, help you through the sad times and laugh with you during the happy times. That is what defines a family, not its structure.

The committee heard a range of numbers about
how many families would actually avail themselves of this technology. The evidence was that it might be up to 50, but in other states where it exists it has been between six and 12.

This is not some left-wing conspiracy. This is about the reality of who cares for children in our community now. There are single-parent families which, I must say by definition, are same-sex families. There are samesex families already providing care and development and nurturing home environments for children. There are blended families where, with relationship breakdown and relationships coming together, people might bring families together.

The research presented to the 2008 committee and by mainstream professional groups shows that
developmental outcomes for the child do not depend on the nature of their birth but the nature of their
care.

It is impossible to determine who will or will not be a good parent. Parenting is as
individual as we all are, and we should not be stereotyping any children coming from the many forms of families. Of course ideally we would love to have a situation where there is a mother and a father and a loving and caring relationship. But we all know that the reality is that that is not the case in every single circumstance. Let us not bury our heads in the sand in regard to this issue. There are widows and widowers, single parents, divorced parents, step-parents and many parents who I know today in the LGBT community. Good parenting, we all know, is much more than just having kids.

I do not believe that the state should be in the business of telling people who should or should not
have a child but it should be in the business of regulating to ensure the protection of children.

I do not believe that it is appropriate for Government to impose restrictions based on marital status, gender, sexual orientation or methods of conception and to class certain members of our community as unfit to become parents when I know many who are already wonderful, loving parents and more than able to successfully raise a family. For those who make moral judgements about what is largely people’s own business—harming no-one and who love and feel just like everyone else—they should open their eyes and not let their narrow-minded view of what is ideal cloud reality.

LGBT community in October last year to which all members of parliament were invited. I want to correct the member for Gympie, who said that there were more members of the LNP there than the ALP. That is simply not true. Unlike him, I kept a list and that is simply not the case. May I also add that I probably would not have been able to hold such a function 20 years ago, because 20 years ago homosexuality was illegal. It was a Labor government that legalised that practice and it is a Labor government that has a proud history in this area.
Present at that function were couples with children. There was a little child running around, and I
knew—you felt it—they were being raised in a loving environment. Here we have members on the other side of the House attending that function and they were as transparent as plastic. Yesterday the
member for Southern Downs in the debate at 5.30 pm used words against the Premier such as ‘deceit’, ‘betrayal’ and ‘mistrust’. I throw those words back at the member for Southern Downs. While LNP members were all there, rubbing shoulders with that community, desperately trying to win their vote, pretending to be on their side, they were concocting a plan against them while trying to embrace them as if they were a part of that community. They will see through them, they will not be fooled and they will not accept the position that those on the other side are taking today.

I personally paid the price for the illegality that exists today. I am very proud to be part of correcting that injustice.

I have set out extracts of some of the Queensland Parliamentary debates as to the surrogacy changes. This is Round 1: what the Opposition said. Round 2 is what the Government said. Round 3 is the two Government MP's who crossed the floor.

It must be remembered that the decriminalisation of altruistic surrogacy was bipartisan policy- so far as it covered married and heterosexual de facto couples. The elements of controversy between the Bligh Government and the LNP Opposition were:

the LNP opposed same sex couples and single people being included as intended parents

the LNP opposed birth certificates issuing in which two women were named as parents

The debate was led on the Government side by the Attorney-General, Cameron Dick and on the Opposition side by his Shadow, Lawrence Springborg. Unlike the debates in Victoria and Western Australia on this point, the debate in the Queensland Parliament reached a fever pitch, and was the kind of debate on a bill not seen in years. I have highlighted portions in bold.

Labor’s loopy, loony, lefty ideas really started to come to the fore. This is some sort of pay-off for those members of the Left who were concerned about the government not going far enough on the likes of abortion reform in Queensland. They got their quid pro quo with some loopy, loony, lefty position when it comes to parenting in Queensland.

Let us look at what the Family Council of Queensland said this morning in an open letter to state

MPs. It said—

The Bill—the Surrogacy Bill 2009—should have been about altruistic surrogacy—that is, non-commercial surrogacy—as a ‘last resort’ for an infertile couple. But no, under that respectable cloak this bill smuggles in an oppressive proposal to deprive children of their birthright—their fundamental right to enter the world, as all of us did, with both a mother and a father.

By what authority does any government permit adults to deny a child her primal right and most profound emotional need: to have both a Mum and a Dad in her life?

It goes on further to say that under this bill a homosexual couple can arrange to bring a baby girl into the world with the full intention of denying that child even the possibility of a mother in her life. The bill will help a single woman to obtain a surrogate baby boy, condemning that baby to live without even the possibility of a father.

We know that in the community relationships are not absolutely ideal. We know that in the community certain circumstances happen. We also know that in the community there have been samesex people, principally lesbian women, who have taken the opportunity to have a child. That has been a case of them utilising the opportunities open to them. There is a big difference between that and the state actually legislating to allow it to be part of acceptable families in Queensland. At the time [altruistic surrogacy] was very much couched in the notion of being extremely limited—limited for medical purposes. There was no mention whatsoever of the social desires of those people who, for all intents and purposes, cannot have children without that sort of intervention.

We will be opposing the government bill absolutely categorically when it comes to those components of it. Those components unfortunately contaminate something that should be given the worthwhile consideration of this parliament—that is, non-commercial surrogacy in the way that it was originally couched and that was in limited terms for medical reasons and not for social reasons.

Unfortunately, other reasonable concepts, including the right of same-sex parents—principally women—who have conceived a child using IVF and who wish to have a guardian recognition of that

child, have also been tied up in this legislation. That issue should have been dealt with very separately,

and there is a justifiable right for those people to have that recognition because those children are out

there and those family relationships already exist. But the LNP will not—absolutely will not—be

supporting this bill because it is a contamination with the same-sex notions which the Labor Party has put in here.

It is also now opening surrogacy for singles. We know full well that children do better in an environment where they have a mum and a dad. We know that.

However, this parliament is seeking to legislate some sort of socialist ideology that says, ‘We will

There are different desires for those adults. Some of them—heterosexual couples who are either

de facto or married—may have been trying to have children for some time and for a medical or genetic reason they cannot have a child and they might not be able to adopt a child. That is a very clear medical reason for that situation to happen. However, now it is a broad social qualification as well for those people who, because of lifestyle, would not normally expect to have a child. With this legislation, they can say, ‘Okay, we’re going to do that.’ We have basically now got designer families. This is about designer families and this is about satisfying the desires of adults. This is not about the children.

Anyone who says that this is about homophobia is absolutely and completely wrong—absolutely

and completely wrong—because you cannot couch this in the terms of someone’s actual sexuality. This is not a mainstream issue. This is not a mainstream issue for the gay community.

There is a fundamental difference between the Labor Party and the LNP when it comes to these views, and one that we do not support which the Labor Party does support is the notion of the state

actively intervening and actually facilitating the notion of gay parenting through a surrogacy arrangement.

I also have serious concerns about what is proposed in this legislation in that there does not have

to be a clear genetic relationship between those people who are desiring to be parents under this

arrangement and the surrogate mother.

Even though it is a non-commercial arrangement, we are dealing with the social mores and desires of certain individuals and, therefore, it can be perceived that there is a commoditisation of women and children through this process.

Children desire a mum and a dad. That is the simple reality. We should not be seeking to deny that.

The bill is so contaminated by your loopy, loony, leftie policies that it is absolutely impossible to support it. If members opposite disaggregate the bill and take those particular sections out, we will support that section. We will support noncommercial surrogacy for heterosexual couples, but we are not going to support something that is so utterly and completely contaminated.

Every child deserves the right to have a mother and a father, not two mothers. Every child deserves a solid family home. My definition of a family is a father and a mother and children.

Under the Family (Surrogacy) Bill 2009 put forward by the LNP, it would be illegal for homosexual

couples and singles to go through this program. We make that point very, very clear. It is not our right to put a child in that situation. How dare we use our position in this chamber to bring in a law to allow that to happen? It disgusts me. Children are not pets; children are human beings.

This is not about prejudice or arguing about same-sex couples wanting to become parents; this is about the rights of the child.

Gay people may make a choice about their sexual preference and lifestyle.

What this government wants to do is serve the best interests of the adults—in this case homosexual couples—before the best interests of the child have been served.

The fact that they were conceived in order to be given away to a homosexual couple and we made them face yet one more challenge and more confusion as they struggle to understand why they were deliberately made to grow up in this situation that has no biological reality.

I accept that same-sex couples may choose to live together in ways different to others, but I do not accept the exploitation of children, assuming them to be a commodity which may be used by same-sex couples so that they can feel good.

One of them is so that same-sex couples can feel good, to gain popularity, and in doing so reduce children to the status of pets which can be acquired for our comfort and pleasure.

Let us look at the first five years of a child’s life. How would it be if a little boy had two mothers?

How do they take him to a public toilet when they go on a so-called family outing? They will have to go to the ladies toilet, won’t they?

How dare we try to break down the morals of a family by agreeing to this legislation?

I want to congratulate [Lawrence Springborg] for his comprehensive presentation prior to lunch.

I do not come to this decision because of any prejudice or hatred towards same-sex couples. I

come to my decision because, when it comes to welcoming a child into this world, the paramount

concern is their interests and their opportunity, where possible, for them to benefit in life from both a

mother and a father. This, to my mind, outweighs all other concerns. I am concerned that the

government’s bill does not place the best interests of a child as the paramount concern and seems to be a step in the direction towards social engineering.

The government’s bill would take a significant step down the road towards turning children into commodities.

The child’s need for a father and a mother outweighs all other equitable concerns—no matter how unfair this might seem to what would be loving parents. We must in my view always place the child’s interests first.

Holding infertile couples to ransom to the desire of one other segment of our society
is nothing short of a disgrace.

I do not believe—and I reject totally—the paternalistic views that are espoused by those who, in some way, would say my life would have been better if I had had gay parents. My life is mine to live. [Hansard records the interjection of Government members: "No one said that."]

At the barbecue that was held here with the lesbian and gay community I said that I would support having the age of consent for heterosexual and homosexual sex made the same age. There is no reason we should discriminate between male and female and between gay and straight. I would support that....My view is that the age of consent for both should be 18.

It is interesting to note that, when the barbecue was held here for the lesbian and gay community,
the LNP representation at that barbecue was greater than the Labor Party representation. However,
those opposite would have us believe that somehow the LNP is homophobic or that somehow we do not want to be with the gay community and yet we outnumbered the Labor Party at that barbecue. What can the lesbian and gay community take from this debate tonight? One very simple point: they will get honesty from the LNP, but from the Labor Party they will get deceit, they will get deception and they will get whatever they want to say to prove their point.

This bill defies our obligations under the United Nations Convention on the Rights of the Child,
because extending surrogacy for social reasons to single parents and same-sex couples breaches the
fundamental right of every child to at least begin life with a mother and a father.

Changing standards to
suit minority groups is unethical and dangerous.

Labor slipped in an oppressive proposal to deprive children of their birthright—their fundamental right to enter the world, as all of us did, with both a mother and a father. It is despicable and unbelievable that any government would try to deny a child of their mostprofound emotional need, and that is to have a mum and a dad in their life. It would be sad for a child to be brought up, with the support of government, asking what a mum is.

The United Nations Declaration on the Rights of the Child affirms that a child must not, save in the
most exceptional circumstances, be separated from his mother, and Labor’s bill does exactly that: in a
premeditated way, a little girl shall live without a mother purely to satisfy the desire of two homosexual
men to have a baby of their own.

The amendments to the status of children will allow a lesbian partner of a child’s birth mother to
be the legal father of that child.

Lesbian women can have sex with a male to
achieve a pregnancy and frequently do so. I am sorry that sounds so disgusting.

Conventional couples and a lesbian pairing pass what we would describe as both tests—those
tests being able to provide an egg, sperm and a viable womb in some, but not all, cases. Male
homosexuals cannot pass both tests. Egg donors are few and far between, and this is the critical point.
There is a five-year wait. After waiting five years, the test for getting donor eggs is very, very tough,
whereas sperm donors are freely available. It stands to reason that homosexual males place an
unreasonable burden on the system that makes surrogacy a sound concept. They legally cannot be
mothers so they should not be included. That said, we need to get over it and get used to it. We need to move on. Let medical facts guide your decision. I am sorry to say that homosexual males must be treated as a separate group and for medical reasons alone must not be included in this bill.

It is disappointing that the government’s bill has been
hijacked by the gay lobby. The government’s bill has been aptly described by Family Council of
Queensland President Alan Baker as a Trojan Horse for the normalisation of same-sex parenting,
saying that it established in law the absurd proposition that two men or two women are the same as a
mother and father.

Under this bill, for example, two men can create a situation where a baby will live their whole life without a mother, just because they want to call a child their own. The mother would cease to exist in law for the child obtained by a single man or homosexual couple. The father would cease to exist in law for the child obtained by a single woman or lesbian couple. The natural bonds of family and belonging would be destroyed by the legal implications of this bill. It is an absurd proposition that two men or two women are just the same from a child’s perspective as a real mother and father.

Whatever the reason or circumstances motivating or medical
technology enabling a child surrogacy, surrogacy still involves taking a baby away from its birth mother
and it is fraught with moral, ethical and physical dangers to both the baby and the birth mother, no
matter what deals have been agreed to before the birth.Take, for example, the stolen generation. The stolen generation involved children being taken
away from their Aboriginal birth mothers. Are Aboriginal or Torres Strait Islander women going to be usedas surrogatemothers? Once those babies are taken away from those Aboriginal and Torres Strait Islander birth mothers, is there any requirement that they be raised in a culturally appropriate way? Or does that not matter, because the surrogate children will not be considered Aboriginal, even though theyhad an Aboriginal birth mother? Will this legislation allow an Aboriginal birth mother to give away her baby girl, for example, to a single man, or to two men, or to two men and one woman who decide to live in a committed relationship? Where are the limits on the types of social and personal arrangements that are allowed by this legislation? There is no limit. It is open slather.

I am deeply concerned with the rights of a child to have heterosexual parents.

This bill is the start of the socialist reform agenda. They start with same-sex
parenting and one begins to wonder where they will go and when they will stop. Children are not a
commodity. You cannot just expect to make them and shoot them out left, right and centre for the sake of some selfish right for children.

I note those opposite will be voting by way of conscience. Can I suggest to those members
opposite who profess to be followers of the Pope that they read the words of the Pope first and then
follow their conscience.

People should not flippantly make babies the guinea pigs of Labor’s social experiment.

The LNP is not saying that single people or individuals in same-sex relationships are not
good people. The LNP is not reflecting on the capacity of those people to love or care for others. There are many single parents in the community who devote themselves to their children and have their best interests at heart. There are many people in same-sex relationships who are undoubtedly very
committed to their partners and their families. However, the LNP is supporting the principle that a child ought to have the right to grow up with both a mother and a father in their lives.

The Bligh government’s bill is actually playing silly politics with the hopes and
dreams of same-sex couples who are trying to have more than only altruistic surrogacy addressed by
our parliament. For example, the Bligh government denied same-sex couples adoption rights, which
seems hypocritical in light of what it is trying to do with altruistic surrogacy.

My vote will be for the children—the
children who, through no fault of their own, will end up as pawns in a high-stakes social engineering
experiment. They will become guinea pigs in this experiment.

The government legislation is crafted in a selfish manner. It biases the wants or the whims of aminority in our community. Parenting is a privilege and a blessing. It is not a right; it is a gift. A child is not an accessory or a commodity that could be or should be traded.

I am going to discriminate. I am going to discriminate in favour of the child.

We have heard about rights. I am going to stand up for the rights of the child

As the good Lord would have it, gay people are in
love and in partnership with somebody of the same sex and, as the good Lord would also have it, they
do not have the ability to bear children. The best interests of the child are far greater than the rights of
same-sex couples and single persons who may claim to want to be parents of a child.

All religious groups and God-fearing people are opposed to this bill.

About 20 years from now will the Prime Minister or the Premier of the day be apologising to the surrogate children as we have apologised to the stolen generation and the war orphans?

The fact that there are cases put forward where
child being reared in a same-sex relationship has been successful does not provide a basis of proof
that a child coming into the world under those circumstances will be successful.

I can imagine a case where a woman chooses not to have a child for social reasons, not medical
reasons. It may be that the woman has a career and does not want a break in that career that carrying
and giving birth to a child may cause. In that case it is for convenience. I do not believe that that social
need is acceptable.

I can imagine a case where a woman chooses not to have a child for social reasons, not medical
reasons. It may be that the woman has a career and does not want a break in that career that carrying
and giving birth to a child may cause. In that case it is for convenience. I do not believe that that social
need is acceptable.

If the Surrogacy Bill 2009 is voted into law today, it will be my view that shouldthe LNP gain government we will undo the wrong of the bill’s current form.

I
have said things in this House in the past that I am not proud of in relation to some of these issues, but I have seen the ill of my ways and apologised to those people in question. [Mr Johnson said that there damned the de facto property provisions because they included same sex couples. He later said that he would have a beer with a "normal homosexual".]

In relation to what some members will say and do in voting here this evening, I hope
their conscience lets them vote the right way. All I can say is: God bless the family unit and God bless
you in making the right decision.

I am not saying that a gay couple cannot be a happy couple together, but the cold reality of life is
that two men cannot bear a child, two women cannot bear a child. This goes against the natural order of things.

Imagine a little boy growing up not
having the opportunity of a father all through those years to look after him and carry him around as a
babe, to muck around and wrestle with him, to teach him to play cricket or footy or fencing, to take him fishing—all the things that fathers and sons do.

What about young girls growing up without a father to put a strong arm around their shoulder and provide them with security throughout their life? They will not have a father to walk them down the aisle one day, who will love them and be sad at giving them away in marriage.

When this bill passes this generation will be known as the detached
generation. They will be detached from their genetic history, they will be detached from their biological
family and they will be detached from their own ancestral history. Who is going to apologise to them?Surrogacy should be a last resort for childless heterosexual couples.

Homosexual behaviour by definition is not normal behaviour in that it is not
behaviour which is practised by the majority of our society, which is the definition of normal.

(Homosexual behaviour) is also not normal behaviour medically in that it uses parts of the human anatomy for purposesthat they were never intended to be used for.

Clearly I am not a homophobic, just ask my friends...

People who do choose that lifestyle are only too aware that one of the consequences of that choice of lifestyle is that they cannot naturally produce children.
Ms Grace interjected.
Mr FOLEY: I take that interjection. I have never seen two guys actually—
Ms Grace interjected.
Mr FOLEY: Not between them personally.

This legislation puts children in a situation where they become a commodity or a chattel.

This bill smuggles in an oppressive proposal to deprive children of their birthright, which is their fundamental right to enter this world as all of us did with both a mother and a father.

2016 winner of a Queensland Law Society Equity and Diversity Award: The Australian Gay and Lesbian Law Blog: " (a)strong and pioneering commitment to the rights of and interests of LGBTI people in Australia" Queensland Law Society May, 2016

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.